Direct or Indirect Elections in Campinas under the approach of Election Law
The electoral process in Campinas has been marked by the discussion about whether or not the indirect election for mayor at the end of the second biennium of the administration coalition PDT & EN.
This is due to cassafdes occurred in 2011, to then Mayor Dr. Helio de Oliveira Santos (PDT) in his second term, and his childhood friend and deputy mayor Demetrius Vilagra (PT). Currently, the office has been occupied by the former mayor, Dr. Peter Serafim Junior (PDT), in what many have called "term-cap."
To better understand what happens we should recall that in Campinas in Brazil, the electoral process is basically divided in two models, the direct election where candidates are elected politicians regularly entered directly by the people, and such is the form that points to the representative democracy.
In the second case, indirect elections are those where the political representatives are not elected directly by the people, but indirectly by an electoral group (Assembly, Congress or Electoral College) composed of representatives of the people.
The 1988 Federal Constitution, in Article 81, § 1, and defined the way the presidential election cases:
"Article 81. Wandering the offices of President and Vice-President of the Republic, far-election will be open for ninety days after the last wave.
"§ 1 - If a vacancy in the last two years of presidential election to both offices within thirty days after the last wave by Congress, according to the law."
"§ 2 - In all cases, the elected complete the term of their predecessors'
In writing the first paragraph "in the form of law" meant the Law No. 4.321/64, in its Articles 1 to 7, on the indirect elections.
The Electoral Code still applied to what we do not contradict the Constitution of 1988, being the rule that divides the application of direct election to the first biennium and indirect election comes just in the second of these laws, at least at the presidential level.
A discussion of the applicability of all or part of another statute, the Law no. 1.395/51, but does not apply to the proposed theme, because no practical effect would lead to a different conclusion.
In Brazilian history, since the proclamation of the Republic on November 15, 1889, eight elections were indirect, and direct democracy prevailed in other nineteen elections. An interesting fact to be highlighted is the fact that Vargas also was elected by a Constituent Assembly, after promotion to the then chief executive brought in the Revolution of 1930.
But the indirect elections had its effective beginning in our political history only with the military dictatorship of 1964.
The Federal Constitution of 1946, article 49, § 2, was regulated by Law no. 1.395/51:
"Article 79, § 2 - Wandering through the offices of President and Vice-President of the Republic, far-election will be open sixty days after the last wave. If vacancies occur in the second half of the presidential term, the election for both positions will be made thirty days after the last wave by Congress in the manner prescribed by law. In all cases, the elected complete the term of their predecessors. " (Highlighted)
In support of the truth, much of the problem about the type of election in Campinas lies in determining the time when vacancies occurred, this is because the delay or avoidance of double double vacancy occurred just at the end of the mandate, the latest being revoked in December 2011. The double vacancy as head and deputy head of the executive branch was in action for condemnation of a final administrative misconduct, conviction of an impediment in the process (impeachment).
At the state level, the Supreme Court has positioned itself in the sense of not applying the principle of symmetry between federation, see judgment related to the Direct Action of Unconstitutionality (ADI) n. No. 1057-3 BA.However, lower courts have disagreed about the applicability of symmetry in the case of legislative omission, as occurs in the Organic Law of Campinas - LOM.
States have different solutions to the issue, sometimes with indirect elections at any time, now with limits on the penultimate election year.
The Federal District also has or should have, autonomy to decide on the issue, stating that the indirect election will occur if the vacancy occurs in the last year of government.
Ball Hall, the main object of the article, as well as others, should not be enslaved by the need to comply with Article 81 of the Constitution of 1988, by the observance of the principle of legality and preservation of the independence of powers, not to mention universal suffrage .
When the double vacancy occurred in Campinas, the Electoral Law stipulated that it would be the Mayor at the time Peter Serafim Junior, the provisional exercise of the office of Mayor until the election of a new owner.The table of the House was also renewed, assuming Thiago Ferrari.
And we must consider that the exercise of the Mayor's position creates ineligibility under Article 14, CF, and the Complementary Law n. º 64, May 18, 1990, with the strongest candidates to assume the leadership of the executive 2013, bound not participate in the indirect elections, especially in a political framework such as the current turmoil. This peculiarity has occasioned the partisan interests and the promotion of social movements that do not necessarily care about the preservation of democracy in Campinas, not to mention that some are just those accused of destroying the city and is not for nothing the lack of emotion and popular support.
The fourth federative entity, despite their autonomy, should in its Organic Law of the City - LOM, obedience to the general principles of the Constitution and their State, in the manner set out in Article 29 of the Constitution.
In the case Campinas, as well as in many other municipalities, the LOM versa nothing goes double vacancy, one of the main problems the performance of indirect election, there being no reason to rush the current mayor to try to settle, so wrong legal and illegal, the matter in the city.
Pray that the electoral process of succession of the Chief Executive is simplified, transparent and the least possible cost to public coffers. The indirect election should always be the last resort of public administration, the poplar to return to the normal administration of the municipality without the affectation of popular sovereignty.
It would be interesting to create a national law which would deal in part on general rules of indirect elections, including devices that facilitate the the registration application.
On February 2, 2011, Judge Flavio Yarshell, the Regional Electoral Court and St. Paul - TRE-SP, suspended the execution of indirect elections in Campinas, in order to cover the term buffer until the end of 2012. The indirect election it was scheduled to occur on March 22, 2012, with rules laid down recently by the City Council, through inner act with questionable legal validity also.
The suspension injunction, without objection by the prosecution appeal of the House gave in to avoid inconvenience and financial costs even more to public coffers.
Another argument for the indirect elections in the city lies precisely in the economy to the public coffers already so dilapidated in 2011, despite the fund budget be funded at the federal level that comes from finalisticamente own citizens:
"[...] 2. Point of order. Peculiar case. Action to contest an elective office.Request upheld. Forfeiture of elected mayor with more than half of the valid votes in the election of 2004. Unduly delaying the enforcement proceedings. Realization of a new election in the last two years of office.New election in indirect mode. Intelligence of Art. 81, § 1 of the Constitution. Immediate communication to the TRE of Bahia and the Mayor of Satyr Days / BA. Precedents. Given the peculiarity of the case, new elections in the City of Satyr Days / BA, less than four months of the end of the mandate, must occur in an indirect way, by application of art. 81, § 1 of the Constitution. "NE: Excerpt from the vote of the rapporteur:" [...] the TRA, until the present date, no marked day for the new direct election, according to art. 224 of the Electoral Code. [...] Understand that it is unreasonable to move all public machine, [...] to be elected Mayor for a term so short. The best solution to this situation is the realization of indirect election "(pages 6-7). (Ac. of 11.9.2008 in AgRgREspe No. 28194, rel. Joaquim Barbosa Min.) (Emphasis)
"Aggravation regimental. Precautionary measure. Order. Assignment.Suspensive effect. Special feature. Regional decision. Determination.Realization. New direct elections. Question. Relevance. Application.Article 81, § 1 of the Constitution. 1. The art. 81, § 1 of the Constitution by providing for the indirect elections in the second biennium of the mandates referred to, is also applicable, by symmetry, states and municipalities, regardless of the cause of vacancy, election or no election. 2. The municipal autonomy that comes to art. 30 of the Federal Constitution does not overlap - the Brazilian federal system - the private and special competence of the Union to legislate on electoral law, expressly provided for in art. 22, I of the Constitution. 3. Due to the systematic interpretation of these provisions, the law regulating the election - and therefore the filling of vacant positions due to - is to be federal, in the face of a uniform normative discipline, as recommended by the Constitution. 4. This understanding prevents the movement of Elections, as the inconvenience of organizing a direct election, in time that has already been directed to carry out the subsequent election. Aggravation regimental provided to grant the preliminary injunction to suspend direct elections determined by the Regional Electoral Court. "NE: Excerpt from the vote of the rapporteur:" [...] the direct election of Dirce Kings / SP was provided by Res .-TRE/SP No. 188/2008 for the 1st of June this year, ie four months of the 2008 race.Given this circumstance, it reinforces the understanding of the need for indirect election, considering it would prevent the movement of Elections, beyond which, if realized, will take place on the eve of the caucuses of the period of the 2008 elections, which occurs in the period 10-30 June (Art. 8 of Law No. 9.504/97). "(Ac., 17.4.2008 in AgRgMC No. 2303, rel. Caputo bastos Min.)
In line with this understanding, the TSE has already taken into account in the decision beyond the biennium in which he was deposed mandates is the monetary value for the direct holding of new elections. The vast sums involved to conduct a new election may reach $ 2 million.
In this sense, it has been decided by the symmetry requirement, negating the autonomy of the municipality on the theme:
"Writ of Mandamus. Resolution of the Regional Court. Determination of direct elections. Forfeiture of mayor and vice. Vacancy in the second biennium of the mandate. Article 81, § 1 of the Constitution. Application to states and municipalities. Order granted. 1. Applies to the states and municipalities, the provisions of art. 81, § 1 of the Federal Constitution, which determines the performance of indirect election, if there is vacancy of the positions of President and Vice-President of the Republic in the last two years in office, regardless of the cause of the vacancy. Precedents of the Court. 2. Order issued to determine the indirect elections in the City of Potion / PE at the expense of the local legislature. "(Ac. of 26.6.2008 in MS No. 3643, rel. Marcelo Ribeiro Min.)
"[...] Nullity of more than half of the votes. New elections, under the indirect method. According understanding of the Superior Electoral Court in a unanimous decision taken on 17.4.2008, applies to § 1 of Art. 81 of the Federal Constitution to state and local elections. [...]. "NE: Excerpt from the vote of the rapporteur:" [...] in consultation on the Intranet of the Superior Court - found that revoked the candidate was elected with 54.513% of the votes [...]. The succession, therefore, must be via a new election, under the indirect method, applying the § 1 of Art. 81 of the Federal Constitution, as understanding of this Court that, as of today (4/17/2008), the unanimously decided by the application of that constitutional provision to state and local elections. " In the decision in respe monocratic No. 27,104 was revoked in 2008, the diploma candidate elected in 2004 for unlawful capture of suffrage. (Ac., 17.4.2008 in AgRgREspe No. 27104, rel. Marcelo Ribeiro Min.)
Other previous autorizativos of indirect election to the order of art. 81, § 1 of the Constitution, and by symmetry consideration that occurred late in the second biennium of the mandate: RESP n. º 27.737/2007, RESP n. º 21.308/2003, AG n. º 4.396/2003, AGRGMS n. º 3.141/2003, MS 3643 EP)
This judgment also argued that only apply the provisions of Article 81 of the Constitution, for the indirect elections, if there were no corresponding Organic Law of the City - LOM:
"Aggravation regimental. Double vacancy caused by resignation of mayor and vice. Application of art. 81 of the Constitution. Municipal Law. Lack of foresight. Aggravation unfounded. "NE: If double vacancy arising due to non election. Excerpt from voting the rapporteur: "As the resignation came in the second biennium of the mandate, applies the provisions of art. 81 of the Constitution, if there is no corresponding provision in the Organic Law of the Municipality, it is not for this Court to investigate the reasons that led to the withdrawal of resigning positions that were occupied. "In this hypothesis can not be placed in the second graduate major election. (Ac. of 09.02.2003 in AgRgMC No. 1274, rel. Min Ellen Gracie.)
One of the hopes of those who militate in the direction of direct election, the ERT was unable to decide on the form and regulation of the matter, but as in RCL n. 256/04, this measure would usurp the jurisdiction of the Court and the separation of powers:
"Injunction. Indirect election for the positions of mayor and deputy mayor.Regulation by the Regional Electoral Court. Usurpation of powers of the Legislative Council. Granting of security to revoke the Resolução-TRE/PA No. 3549. "(Ac. of 6.4.2004 in MS No. 3163, rel. Min Ellen Gracie)
The 33 councilors are awaiting the decision of the TRA to decide on the indirect election, that the second decision by Judge Augusto Bernardes depends matter whose jurisdiction is the courts and not the judge of first instance. The combative lawyer Peter Benedict Maciel Neto, PCdoB party also points out that besides the need to carry out direct elections should have been a preliminary inquiry justice in the House: "If the TRA determines that the elections in Campinas should even be indirect, againstjurisprudence majority of the TSE and the STF (Supreme Court), the TSE will PCdoB to ensure that popular sovereignty that arises from the direct vote is respected "(Article - Decision on direct election rests with the TRA, published on 24/01 / 2012)
The Supreme Court has confirmed the performance of indirect election in Tocantins, the choice of governor and lieutenant governor to replace Marcelo Miranda PMDB Sydney and Paul Ali (PPS). The challenge for direct elections in this case was conducted by PSDB, on the grounds of unconstitutionality of state laws regulating this type of election. The lawsuit was dismissed by the possibility of states have established how to vote, because of its autonomy from the federal level in this area, as well as no affectation of universal suffrage and popular sovereignty by the timeliness of cases.
In Santa Luzia Itanha - Sergipe, the same happened at the municipal level, ie the indirect elections for the impeachment of the mayor of Love Adauto Dantas Cardoso (PSB) and Deputy Jose Cruz for Felix Edvaldo administrative malfeasance. In this case, there were protests from the PSDB for direct elections, but without success the arguments that supported the lack of mandatory use of art. 81 of the Federal Constitution to the states, Federal District and municipalities. Ministers understand the applicability of the constitutional provision, and lack of reasonableness and proportionality of direct elections in view of the proximity of the municipal elections next year.
There are theoretical conceptions incompatible with the systematic coherence of the legal system, one of which the law recognizes that the application of symmetry over the autonomy of the municipality. The Constitution also determined how deprivation of substantive competence ratione Union to legislate on electoral law (Constitution, Article 22., I). The exception to this rule was clearly seen in the dictatorship and now so dangerous in some judgments.
The direct vote is entrenchment clause (Art. 60, § 4, II, CF), can not be abolished from the Constitution or qualified by standard infra. The only exception to the constitutional text is the art. 81 of the same law. But the Supreme Court stood in the sense of non-binding obligation of the Federal District and Municipalities rule reserved the presidency and vice presidency.
Voting open directly should prevail, especially when there is suspicion or risk of shady deals behind the scenes. The principle of publicity, of universal suffrage and popular sovereignty should be preserved as part of primatial authority of the citizen as voter. The principle of legality, preserving the independence of powers and the system of normative interpretation are also factors that speak in favor of direct elections, notably the absence of regulation at the municipal level, since the act açodado the current mayor does not have the power to mitigate the interest of the demands of the opposition or supplant the lack normative in LOM.
You must weigh the economic gradient in favor of the realization of indirect election, the movement of all the gear electoral machine in such a short time and expense of the exchequer, but as I said a lawyer once Campinas, who pays the bill is democracy. However, the High Courts has demonstrated that the proximity of the end of the second biennium, the need for rearrangement of the executive branch and protection governance prevail for the granting of indirect election to direct detriment. In a city discredited, the best solution would be one that brings governance and speed the resumption of the administration in a cast since the end of 2010.
Regional Electoral Court in São Paulo
Superior Electoral Court